Justyne Caruana on Wednesday filed legal action challenging the constitutional validity of the law whereby she was targeted for investigation by the Standards Commissioner. She filed the action within hours of resigning as Education Minister.
Caruana’s lawyers filed constitutional proceedings before the First Hall, Civil Court claiming that the Standards in Public Life Act, which granted the Commissioner an “unfettered discretion from beginning to end” effectively breached the applicant’s fundamental right to a fair hearing.
Not only did the law lack the necessary safeguards to ensure that an investigated person was ensured a fair hearing, but the former minister was also “seriously preoccupied” by the way the whole process was applied in her regard.
The issue revolves around a report published by the Standards Commissioner on December 10 following investigations about a contract of employment granted by the former minister in favour of her friend and former Malta footballer Daniel Bogdanovic.
Investigations by the Commissioner began after two complaints, the first of which was filed by Bogdanovic’s ex-wife.
By means of a letter dated August 9, the minister was summoned to testify before the Commissioner and warned that unless she complied she would be held in breach of law.
Caruana gave her testimony on August 26, after being told that the subject at issue was the consultancy granted to Bogdanovic.
However, at no point was she shown the contents of the complaints which had triggered the investigation, her lawyers said.
When answering those questions which the Commissioner chose to put to her, Caruana lacked full knowledge of the allegations she was facing, they argued.
That testimony was followed up by a meeting with the Commissioner and his officials on October 1 held for the purposes of “disclosure” in terms of law.
But what the (then) minister actually got was very limited disclosure, her lawyers claimed.
She was handed four files of evidence which she had to go through in the Commissioner’s office, jotting down notes as she went along.
However, she was not provided with a copy of that "voluminous" paperwork, nor was she allowed to make a copy, at least in part, and so she could only rely on the notes she took down in the limited time at her disposition her lawyers dai.
Throughout the process, Caruana could produce new witnesses but she could not cross-examine those who had already testified.
Besides, her legal team argued, the advice she got was that it would be in her own interest if “the process was not long drawn out”.
The commissioner finally delivered his decision, stating that the then-minister had abused her power and breached the ministerial code of ethics.
His report was published by the media even before a copy was made available to the minister herself, the lawyers claimed, and the matter was passed on to the Parliament's Standards Committee.
Caruana is now facing possible criminal consequences because, should the committee take on board the commissioner’s report, it may refer the matter to the police commissioner for further investigations.
In light of such facts, Caruana’s lawyers are now challenging the constitutional validity of the entire process.
The first argument is that the law regulating the Standards Commissioner’s Office did not draw a distinction between his investigative and decision-making role, granting him “unfettered discretion” from beginning to end and this breached the subject person’s right to be heard by an impartial and independent judge.
The commissioner had the discretion to choose who and what to investigate, who to summon as witness, absolute power in conducting proceedings and ultimately drawing up his report.
Secondly, Caruana's lawyers argue that the situation was made worse by the fact that the law did not provide for some kind of review or appeal.
At Standards Committee stage the person had no standing and no means of challenging the commissioner’s conclusions except through submissions.
No new witnesses could be produced.
Thirdly, although the law spoke of “access to all evidence” what Caruana actually got was a meeting and some time to go through the “voluminous evidence” at the commissioner’s office.
Finally, the law did not safeguard the investigated person’s right to silence.
On the contrary, letters sent out to those called to appear before the commissioner warned that unless they complied they would face administrative penalties for choosing not to testify.
In light of such considerations, Caruana’s legal team are requesting the court to declare the law, namely Chapter 570, as unconstitutional and consequently to annul the commissioner’s report.
Moreover, any evidence gathered should not to be used against Caruana in any possible future criminal investigations or procedures, they said.
The court is also being requested to liquidate moral damages in Caruana’s regard payable by the State Advocate and the Standards Commissioner as respondents.
Lawyers Michael Sciriha, Franco Galea and Joseph Camilleri signed the application.
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